Here’s how our criminal justice system is biased — according to science

For the last few days, President Obama has been touring the country, talking about the desperate need for criminal justice reform. This past Thursday, he became the first sitting president to visit a federal prison, a corrections facility in El Reno, Oklahoma. Two days prior, he spoke at the NAACP’s annual conference in Philadelphia.

Much of his speech was dedicated to discussing inequities in our country’s dispensation of criminal justice — he cited several statistics pointing to the disproportionate jailing of Latinos and African Americans — and the failings of a system that now houses nearly twice as many people as it did two decades ago. “[O]ur criminal justice system isn’t as smart as it should be,” the president said. “It’s not keeping us as safe as it should be. It is not as fair as it should be. Mass incarceration makes our country worse off, and we need to do something about it.”

A national conversation around criminal justice in the United States, a country that jails more of its population than any other country in the world, by percentage and in number, is long overdue. In his new book, Unfair: The New Science Of Criminal Injustice, Drexel University associate professor of law Adam Benforado looks closely at the science at work in our justice system. His research reveals that not only do race and class have a tremendous impact on access to justice, issues such as juror life experience and the fatigue level of parole boards can mean the literal difference between freedom and incarceration — and sometimes, life and death — for those who find themselves caught up in the system.

In an interview on NPR’s Fresh Air, Benforado discussed the heavy emphasis placed on confessions in convictions, despite the fact that they aren’t always reliable evidence of guilt. “[O]ne of the things we know from psychology is that juries place great, great weight in confessions,” says Benforado. “What we also know is that confessions can be a very bad way to convict a person. Sometimes we get it wrong.”

The Innocence Project, which is responsible for more than 330 exonerations, notes that “more than 1 out of 4 people wrongfully convicted but later exonerated by DNA evidence made a false confession or incriminating statement.” Saul Kassin, a professor of psychology at John Jay College of Criminal Justice who has dedicated much of his career to researching false confessions, told Time magazine in a 2013 interview that often, “[o]nce the confession is taken, it trumps everything else…its effects cannot be reversed.”

A significant part of the problem is the way in which confessions are obtained. Benforado says the interrogation process is essentially divided into two parts. In the initial stage, police tend to focus on behaviors that might indicate a suspect is lying. However, the methods for determining deception are rooted in false ideas about body language and the use of leading lines of questioning.

“[Police] bring in the suspect, usually into a small, windowless room, and they ask them some provocative questions meant to reveal deceit,” Benforado explains. “And the problem here is the things that detectives tend to focus on or are told to focus on, which are demeanor elements like jittery limbs or averted gaze, tend to actually be terrible ways to determine whether someone is lying. So quite frequently someone who’s committed a horrible crime will look you straight in the eye and tell you that they’re innocent.”

With this incredibly fallible means of establishing that a person is lying already in place, law enforcement officers move on to what Benforado considers the second stage of the interrogation. “And the focus there is simply on gaining an admission of guilt,” he says. “It’s not primarily about collecting more information, revisiting that possibility that maybe this person didn’t do it. It’s all about getting to that admission that we need. And the techniques that are used here can be roughly summarized as sort of the classic good-cop, bad-cop routine, what’s referred to as maximization and minimization. And we know from laboratory experiments that this can be highly coercive. And the people who are particularly vulnerable tend to be people with low IQs, people who are young, teenagers, people with a history of mental health problems.”

The ACLU points out why mental disability often leads to false confessions. As I wrote in a previous article about death row exonerations, mentally disabled people “are more likely to confess to crimes they didn’t commit in order to appease interrogators. Their limited mental competence makes them less capable of fully comprehending the law and their legal rights…[a]nd they are more easily coerced and bullied.” In a 2004 study of 125 false confessions — the most expansive published research on the issue to date — researchers found that “when suspects falsely confessed and then pled ‘not guilty’ and proceeded to trial, the conviction rate was 81 percent.”

The clear takeaway here is that false confessions of guilt, while not terribly difficult to obtain, can be nearly impossible to undo or erase. The same study found that the overwhelming majority, 89 percent, of false confessions were observed in cases involving rape and/or murder. The prevalence of these sorts of false confessions was attributed to the “strong pressure on police to solve cases involving violent crime.”

As the proliferation of cellphones and other recording devices have helped prove the rates of police violence and brutality that communities of color have long contended existed, the push to visually document all interrogations has grown. Though the idea sounds like an ideal way to ensure that proper procedures and protocols are followed during questioning, Benforado points out that point-of-view — that is, whether we are seeing the interview through the eyes of the interrogator or the suspect — can create bias among those who view those recordings.

“When people watched the footage shot from the perspective of the interrogator, they tended to say, well, this looks like a completely fine, voluntary confession,” says the legal expert. “But when they watch the videotape from another perspective, through the eyes essentially of the suspect, suddenly they notice all of these coercive factors. And they tended to think, well no, actually that confession cannot come into court because it is so badly influenced by the actions of the interrogator.”

Another disturbing revelation from Benforado’s research is how little the facts of the case, and the law itself, play in verdicts rendered by juries. It’s long been established, for example, that black men are sentenced to longer prison terms than white men for similar crimes, and that skin tone and facial features that are more “stereotypically black” correlate with a higher incidence of death sentences. But Benforado also found that the “backgrounds and experiences of the jurors” — what he calls “cultural cognition” — weigh far more heavily in determinations of a suspect’s guilt or innocence than the legalities of the case being tried. In particular, Benforado cited the example of trials involving date rape, the study of which yielded unexpected insights.

“It wasn’t that men were far more likely to let the man off in a date rape scenario,” said Benforado. “It was actually within women that the most interesting break occurred. Women who were older, who were more conservative, who adhere to more traditional gender norms, were far more likely to let the man off in this particular case than women who were liberal and younger.”

If all of the above factors might be described as deeply troubling, the findings of Benforado’s research into parole boards and the issues that affect their decisions might be the most alarming of all. Most of us might assume that, along with a review of the intricacies of the case, things like exhibited reform and behavior during imprisonment would most influence parole board determinations. But researchers found a far more mundane factor held sway: time of day. That’s right: prisoners might be released or returned to jail based, in large part, on when they happen to appear before the deciding board.

As Benforado states, “First thing in the morning was the best time to appear before the panel. The worst time? Right before the first break in the day….One theory is that basically to deviate from the status quo requires, essentially, mental energy and that over the course of a day, people become depleted. And the more depleted they are, the more likely they’re just to stick with the status quo. And the status quo, when it comes to the parole board, is just leaving someone in prison to finish out their sentence.”

While eyewitness misidentification also plays a key role in sending the innocent to jail (the Innocence Project identifies it as “the greatest contributing factor to wrongful convictions proven by DNA testing, playing a role in more than 70% of convictions overturned through DNA testing nationwide”), Benforado also points to issues around judicial bias. Not just the fact that implicit racial bias exists, but also the particular way that the homogeneity of those tasked with deciding the fates of the accused manifests itself in criminal justice outcomes.

“The worst possible thing is when everyone is biased and everyone is biased in the same way. If you look at the makeup of our judiciary, it is primarily white, wealthy, Ivy League-educated older men,” he says. “That’s a problem because all of their biases are going to tend to a line. And that’s going to be exacerbated by the fact that our legal system and all of our laws under our common law system have been developed by older, white, highly educated men. I think to the extent that we can focus on term limits efforts to ensure a diverse set of judges, that’s another way to get at this problem of bias.”

While the situation may sound hopeless, Benforado believes that new studies and practices being implemented around the United States could slowly help create a justice system that is fairer. He is also looking to Europe, where police departments have instituted a practice termed “cognitive review.” He explains it thusly:

“[T]he cognitive interview is all about collecting information. It’s not about pressuring someone into admitting guilt. It’s about extracting as much information, as much data from the person you’re talking with as possible. Now, what that does is, it avoids any of the problems that we know happen when we use psychological coercion. We don’t really run a risk of a false confession. What we do know though is we collect all of this data which then can be compared to all of the data we have elsewhere and in which we can catch people in lies very effectively.”

In the end, our system of criminal justice is a reflection of who we are, and it is marred by the same issues that are inherent in being human. With that recognition, we can finally put in place stopgaps that compensate and even override the problems our biases and flaws in thinking create.

Says Adam Benforado, “I am asking that we rely much less on hunches, but it’s not just cops that I care about. I want judges and jurors and eyewitnesses to all give up this notion that they’re infallible, that their memories work the way they think their memories work, that they make good calls based on objective factors. I think we need to control for our human limitations.”